No. 140, Original
444444444444444444444444444444444444444444
IN THE
Supreme Court of the United States
____________________
LOUISIANA, et al., Plaintiffs,
v.
JOHN BRYSON, Secretary of Commerce, et al.,
Defendants.
____________________
On Motion for Leave to File Bill of Complaint
____________________
Brief Amicus Curiae of U.S. Border Control, U.S.
Border Control Foundation, U.S. Justice Foundation,
Institute on the Constitution, Gun Owners of
America, Inc., Gun Owners Foundation, English
First, English First Foundation, Conservative Legal
Defense and Education Fund, The Lincoln Institute
for Research and Education, Public Advocate of the
United States, Policy Analysis Center, Del. Bob
Marshall, Rep. Charles Key, Del. Don Dwyer, Rep.
Matt Shea, Sen. Kit Jennings, Bob Fanning, and
Chuck Baldwin in Support of Plaintiffs
____________________
GARY G. KREEP
U.S. JUSTICE FOUNDATION
932 D Street
Suite 3
Ramona, CA 92065
(760) 788-6624
Attorney for Amicus
U.S. Justice Foundation
HERBERT W. TITUS*
WILLIAM J. OLSON
JOHN S. MILES
JEREMIAH L. MORGAN
WILLIAM J. OLSON, P.C.
370 Maple Avenue West
Suite 4
Vienna, VA 22180-5615
(703) 356-5070
wjo@mindspring.com
January 13, 2012
Attorneys for Amici Curiae
*Counsel of Record
444444444444444444444444444444444444444444
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . iii
INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . . . 1
STATUTE INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . 3
ARGUMENT
I.
THE COURT SHOULD EXERCISE ITS
ORIGINAL JURISDICTION IN THIS CASE
TO PRESERVE THE INTEGRITY OF THE
HOUSE OF REPRESENTATIVES AND
ELECTORAL COLLEGE . . . . . . . . . . . . . . . 5
II.
CONGRESS DID NOT AUTHORIZE THE
DEPARTMENT OF COMMERCE TO
INCLUDE IN THE 2010 CENSUS PERSONS
WHO ARE NOT MEMBERS OF THE
POLITY OF ONE OF THE SEVERAL
STATES OF THE UNION . . . . . . . . . . . . . . 7
III.
CONGRESS IS NOT AUTHORIZED BY THE
CONSTITUTION TO INCLUDE IN THE
DECENNIAL CENSUS ANY PERSON WHO
IS NOT A MEMBER OF THE POLITY OF
ANY ONE OF THE SEVERAL STATES
A. Congress Does Not Have Plenary Authority
to Conduct a Decennial Census of the
American People . . . . . . . . . . . . . . . . . . . . . 11
ii
B. Congress Is Not Authorized to Include in the
Decennial Census a Person Who Only Lives
Geographically in a State, but Is Not a
Constituent Part of the “People” of the Several
States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
C. The 2010 Census Count, Made without
regard to Immigration or Citizenship
Status, Undercuts State Citizenship as
Defined by the Fourteenth Amendment . . 18
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
iii
TABLE OF AUTHORITIES
Page
U.S. CONSTITUTION
Article I, Section 1, Clause 3 . . . . . . . . . . . . . . . . 4, 7
Article I, Section 2, Clause 1 . . . . . . . . . . . . . . . 4, 14
Article I, Section 2, Clause 3 . . . . . . . . . . . . . 7, 9, 11
Article II, Section 1, Clause 2 . . . . . . . . . . . . . . . . . 6
Article VI, Clause 2 . . . . . . . . . . . . . . . . . . . . . . . 3, 6
14th Amendment . . . . . . . . . . . . . . . . . . . 4, 7, 11, 18
STATUTES
2 U.S.C. § 2a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
13 U.S.C. § 141 . . . . . . . . . . . . . . . . . . . . . . 5, passim
CASES
Bush v. Gore, 531 U.S. 92 (2000) . . . . . . . . . . . . . . 6
Dept. of Commerce v. U.S. House of
Representatives, 525 U.S. 316 (1999) . . . . 7, 8, 12
United States v. Verdugo-Urquidez,
494 U.S. 259 (1990) . . . . . . . . . . . . . . . . . . . 14, 15
United States ex rel. Turner v. Williams,
194 U.S. 279 (1904) . . . . . . . . . . . . . . . . . . . 15, 17
Utah v. Evans, 536 U.S. 452 (2002) . . . . . . . . 12, 13
MISCELLANEOUS
2010 Census Constituent FAQs (U.S. Department of
Commerce, Economics and Statistics
Administration, U.S. Census Bureau) . 3, 7, 8, 16
C. Burdick, The Law of the American Constitution
(New York: 1922) . . . . . . . . . . . . . . . . . . . . . . . . 18
iv
T. Cooley, The General Principles of
Constitutional Law in the United States
(Little, Brown Boston: 1880) . . . . . . . . . . . . 11, 18
The Federalist, No. 52, 54 (G. Carey & J.
McClellan, eds.: Liberty Press 2001) . . . . . . . . 10
1 J. Story, Commentaries on the Constitution,
(5th ed. 1891) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
N. Webster, Third International
Dictionary (1964) . . . . . . . . . . . . . . . . . . . . 8, 9, 10
INTEREST OF THE AMICI CURIAE1
U.S. Border Control (www.usbc.org), Gun
Owners of America, Inc. (www.gunowners.org),
English First (www.englishfirst.org), and Public
Advocate
of
the
United
States
(www.publicadvocateusa.org) are nonprofit social
welfare organizations, exempt from federal income tax
under section 501(c)(4) of the Internal Revenue Code
(“IRC”).
U.S.
Border
Control
Foundation
(www.usbcf.org), U.S. Justice Foundation
(www.usjf.net), Gun Owners Foundation
(www.gunowners.com), English First Foundation
(www.englishfirstfoundation.org), Conservative
Legal Defense and Education Fund
(www.cldef.org), The Lincoln Institute for
Research and Education (www.lincolnreview.com),
and Policy Analysis Center are nonprofit
educational organizations, exempt from federal income
tax under IRC section 501(c)(3).
Each of the above nonprofit organizations is
interested in the public policy process, the proper
construction of state and federal constitutions and
statutes, and questions related to human and civil
rights secured by law.
1
It is hereby certified that the parties have consented to the filing
of this brief; that counsel of record for all parties received notice
of the intention to file this brief at least 10 days prior to the filing
of it; and that no counsel for a party authored this brief in whole
or in part, and no person other than these amici curiae, their
members, or their counsel made a monetary contribution to its
preparation or submission.
2
Institute
on
the
Constitution
(www.iotconline.com) is an unincorporated educational
association established in Maryland in 2000, intended
to reconnect Americans to the history of the American
Republic and to their heritage of freedom under law.
Delegate
Bob
Marshall
(R-VA-13)
(www.delegatebob.com) is a senior member of the
Virginia House of Delegates. Representative Charles
Key (R-OK-90) (www.charleskey.com) is a member of
the Oklahoma House of Representatives. Delegate
Don Dwyer (R-MD-31) (delegatedwyer.com) is a
member of the Maryland House of Delegates.
Representative Matt Shea (R-WA-4)
(www.voteshae.com) is a member of the Washington
House of Representatives. Senator Kit Jennings is a
member of the Wyoming Senate. Bob Fanning is a
candidate for Governor of Montana, and Chuck
Baldwin is a candidate for Lt. Governor of Montana
(fanning-baldwin.com).
STATUTE INVOLVED
13 U.S.C. § 141(a)-(b):
(a) The Secretary shall, in the year 1980 and every
10 years thereafter, take a decennial census of
population as of the first day of April of such year,
which date shall be known as the “decennial census
date”, in such form and content as he may determine,
including the use of sampling procedures and special
surveys. In connection with any such census, the
Secretary is authorized to obtain such other census
information as necessary.
(b) The tabulation of total population by States
3
under subsection (a) of this section as required for the
apportionment of Representatives in Congress among
the several States shall be completed within 9 months
after the census date and reported by the Secretary to
the President of the United States.
***
SUMMARY OF ARGUMENT
The United States Census Bureau maintains that
the Bureau “is required by the U.S. Constitution to
count everyone living in this country, regardless of
immigration or citizenship status.”2 That claim is
demonstrably untrue.
First, the United States Constitution did not create
the Census Bureau, or even the Department of
Commerce, of which the Bureau is a part. Thus, the
Constitution vests no power directly in the Bureau.
Rather, the Census Bureau is a creature of the United
States Congress. As such, its powers and duties are
determined by statute, not by the Constitution. Even
then, the law establishing the Bureau must itself be
“made in pursuance” of the Constitution in order for it
to be the law of the land. See U.S. Constitution, Art.
VI, Cl. 2.
Further, the Constitution does not require, or even
authorize, a census “count [of] everyone living in this
2
See 2010 Census Constituent FAQs, Q. 2 (U.S. Department of
Commerce, Economics and Statistics Administration, U.S. Census
Bureau), http://2010.census.gov/partners/pdf/ConstituentFAQ.pdf
(hereinafter “2010 Census FAQs”).
4
country.” Rather, Article I, Section 1, Clause 3, as
amended by Section 2 of the 14th Amendment,
authorizes a targeted decennial census of the
“respective numbers” of the People of the several
States, not a wholesale count of the numbers of
persons found “living” in the United States. Only by
such a tailored count can the constitutionallyauthorized decennial census serve the purpose for
which that census has been required — the
apportionment of representation of the people of the
several states in the U.S. House of Representatives.
Lastly, it is manifestly untrue that the decennial
census ordained by the Constitution is to be taken
without regard to a person’s “immigration or
citizenship status.” The decennial census is conducted
for the apportionment of representation in the House
of Representatives, the members of which are “chosen
every second Year by the People of the several
States.”3 The first sentence of the 14th Amendment
establishes a symbiotic relationship between a person’s
United States citizenship and that person’s State
citizenship. Thus, whether a person is part of the
People of a State is largely, if not exclusively, dictated
by a person’s “immigration or citizenship status.” Any
census that ignores that connection is fatally flawed.
3
Art. I, Sec. 2, Cl. 1, U.S. Constitution (emphasis added).
5
ARGUMENT
I.
THE COURT SHOULD EXERCISE ITS
ORIGINAL JURISDICTION IN THIS CASE
TO PRESERVE THE INTEGRITY OF THE
HOUSE OF REPRESENTATIVES AND
ELECTORAL COLLEGE.
Exceeding his authority under 13 U.S.C. § 141(a) by
counting citizens of foreign nations in the 2010
census,4 the Secretary of Commerce (“the Secretary”)
conducted an erroneous count, then reported that
erroneous count to the President of the United States
under 13 U.S.C. § 141(b). In turn, the President
transmitted to Congress an inaccurate “statement
showing the whole number of persons in each state ...
and the number of Representatives to which each
State would be entitled....” 2 U.S.C. § 2a(a). The Clerk
of the House of Representatives then sent an
erroneous “certificate of the number of Representatives
to which such State is entitled....” 2 U.S.C. § 2a(b).
Thus, the Secretary of Commerce’s error of law in
conducting the census has set in motion a process
which will result in an incorrect allocation of seats in
the House of Representatives among the several
States. The Declaration submitted by Plaintiffs
demonstrates each of five States (Louisiana, Missouri,
Montana, North Carolina, and Ohio) losing one seat to
which it is properly entitled, with those seats being
transferred to three States which are not entitled to
those seats (California (2), Texas (2), and Florida (1)).
4
See discussion infra, pp. 7-11.
6
See Declaration of Troy C. Blanchard, Ph.D., Exh. 1 to
Louisiana’s Complaint.
In addition to improperly reallocating the relative
political power of these States in Congress, the
Secretary’s report and President’s transmittal of his
statement to Congress has had the effect of improperly
changing the composition of the Electoral College
which is composed of a “Number of Electors, equal to
the whole Number of Senators and Representatives to
which the State may be entitled in the Congress....”
Art. II, Sec. I, Cl. 2. Thus, President Obama’s reliance
on the Secretary’s count has altered the composition of
the electoral college as it will exist when it meets in
December 2012 to elect the President of the United
States — an election in which President Obama is a
candidate. In an era of close elections which have
involved the intervention of this Court,5 it is entirely
possible that the outcome of the vote of the Electoral
College following the November 2012 general election
will be so close that its outcome will be decided by the
five electoral votes shifted by the actions of President
Obama and his Secretary of Commerce. For this
reason alone, resolving the legality of this
Administration’s actions now, prior to the November
2012 election, is critical to the preservation of the
integrity of the December 2012 vote of the Electoral
College, and confirms the need for expedition made
possible by plaintiffs’ complaint filed directly in this
Court.
5
See Bush v. Gore, 531 U.S. 92 (2000).
7
II. CONGRESS DID NOT AUTHORIZE THE
DEPARTMENT OF COMMERCE TO
INCLUDE IN THE 2010 CENSUS PERSONS
WHO ARE NOT MEMBERS OF THE
POLITY OF ONE OF THE SEVERAL
STATES OF THE UNION.
By statute, Congress has directed the Secretary of
Commerce to “take a decennial census of population
as of the first day of April” every 10 years after the
year 1980 “in such form and content as he may
determine....” 13 U.S.C. § 141(a) (emphasis added).
The Secretary has construed section 141(a) to require
the Census Bureau to count all persons “living” on a
particular day in April within the geographic
boundaries of the United States of America, including
the District of Columbia and the territories and other
possessions of the United States. See 2010 Census
FAQs, Q. 2. Such an interpretation would appear to be
based upon the premise that Congress has required, or
at least authorized, the Bureau to count persons
without regard to their legal status.
It is well established, however, that the language of
section 141 must not be interpreted in the abstract,
but rather in accordance with the constitutional
authority to conduct a decennial census vested in
Congress by Article I, Section 2, Clause 3, as amended
by Section 2 of the 14th Amendment. See Department
of Commerce v. U.S. House of Representatives, 525
U.S. 316, 321 (1999).
Taken together, these
constitutional provisions provide for a decennial
census for the purpose of “apportion[ing] [the number
of] representatives among the several States according
8
to their respective numbers,” and, to that end, vest
Congress with the power to direct an “actual
enumeration” — “counting the whole number of
persons in each State, excluding Indians not taxed.”
Id.
Constrained both by (i) the purpose that
representation of the States in the House of
Representatives be proportionate to the populations of
each State, and (ii) the requirement to determine the
number of persons State by State, the decennial
census was not designed to count willy nilly the
number of persons found living in the United States as
a whole. Rather, the constitutional text contemplates
a count of the number of persons who constitute the
“population” of each State. Id.
Even the Secretary acknowledges that the Bureau’s
authority does not extend to “visitors” who happen to
be present at a particular place of residence on census
day. 2010 Census FAQs, Q. 24. Such a person would
not be part of the “population,” that is, a part of “the
whole number of people or inhabitants occupying a
specific geographical locality.” See N. Webster, Third
International Dictionary, p. 1766 (1964) (emphasis
added). But the Secretary insists that the decennial
population count must include any person who is a
citizen of a foreign country, including any such
person living in the United States merely to attend
college, because such person “lives and sleeps most of
the time” within the United States. See “Residence
Rule and Residence Situations for the 2010 Census,”
Items # 8 and 14 (hereinafter “Residence Rules”).6
6
http://www.c ensus.gov/population/www/cen2010/
redi_rules/resid_rules.html
9
Simply because a person “lives and sleeps most of the
time” in a specific geographic place does not mean that
such person “occupies” that place. To occupy means
more than that — it means “to take up residence in,”
“[to] settle in,” or “to hold possession of.” See N.
Webster, p. 1561. To occupy, then, connotes a stay of
some indefinite duration, not a limited period such as
a citizen of a foreign country on a work or student visa.
Counting foreign citizens on temporary visas is outside
the authority granted to the Secretary under 13 U.S.C.
§ 141(a).
The Secretary’s authority is also constrained by 13
U.S.C. § 141(b), which assigns to him a related task, to
be completed “within nine months after the census
date,” namely, “[t]he tabulation of total population by
States under subsection (a) of this section as required
for the apportionment of Representatives in
Congress....” (Emphasis added.) The Bureau is
“required” by section 141(b) to ensure that the
decennial census count is used properly to apportion
the Representatives of Congress according to the
number of persons who constitute the people of each
State.
This reading is consistent with the
constitutional purpose of the decennial census which
is designed to ensure that membership in the U.S.
House of Representatives is based upon a principle of
popular sovereignty, namely, that the members of the
House would truly be “chosen every second Year by
the People of the several states.”
See U.S.
Constitution, Art. I, Sec. 2, Cl. 3 (emphasis added).
As James Madison observed in Federalist 52:
10
As it is essential to liberty, that the government
in general should have a common interest with
the people; so it is particularly essential, that
the branch of it under consideration should have
an immediate dependence on, and an intimate
sympathy with, the people. [The Federalist, No.
52, p. 273 (G. Carey & J. McClellan, eds.: Liberty
Press 2001) (emphasis added).]
And as Madison further observed that as for:
the house of representatives [and] the
apportionment of its members to the several
states.... [i]t is not contended, that the number of
people in each state ought not be the standard
for regulating the proportion of those who are to
represent the people of each state. [Id., at 282
(emphasis added).]
In this context, “the total population by States,” as
stated in section 141(b), takes on a more specific
meaning, namely, “a body of persons having some
quality or characteristic in common” over and above
that of “occupying” a particular geographic area. See
N. Webster, Third International Dictionary, p. 1766.
That common quality or characteristic would be shared
by those persons who constitute the People of each
constituent State of the federal union established by
the Constitution — that is, those who owe allegiance
to a particular State.
Citizens only of foreign nations, whatever their legal
status — student, worker (legal/documented or
illegal/undocumented), landed immigrant or non-
11
immigrant — do not owe allegiance to any State, and,
therefore, are not citizen members of any State polity.
See U.S. Constitution, 14th Amendment, Sec. 1. As
Thomas Cooley explained:
It is impossible to conceive of such a status as
citizenship of a State unconnected with
citizenship of the United States, or of citizenship
of the United States within a State unconnected
with citizenship of the State. [T. Cooley, The
General Principles of Constutional Law in the
United States, pp. 244-45 (Little, Brown Boston:
1880).]
Properly construed, 13 U.S.C. § 141 does not authorize
the inclusion of foreign citizens in the decennial census
for the purpose of apportionment of members of the
representatives.
III.
CONGRESS IS NOT AUTHORIZED BY
THE CONSTITUTION TO INCLUDE IN
THE DECENNIAL CENSUS ANY PERSON
WHO IS NOT A MEMBER OF THE POLITY
OF ANY ONE OF THE SEVERAL STATES.
A. Congress Does Not Have Plenary
Authority to Conduct a Decennial Census
of the American People.
Article I, Section 2, Clause 3, as amended by Section
2 of the 14th Amendment, specifies the kind, method,
frequency, and purpose of the decennial census.
12
First, it authorizes Congress to provide for a count
of the number of persons State by State, not of the
number of persons without regard to their relationship
to a particular State. To be counted in the decennial
census, a person must be “in” a State, and numbered
accordingly, not “in” the District of Columbia or
territory of the United States. As plainly stated in the
14th Amendment, “Representatives shall be
apportioned among the several States according to
their respective numbers, counting the whole number
of persons in each State.” See also Dept. of Commerce
v. U.S. House of Representatives, 525 U.S. 316, 321-22
(1999).
Second, while Congress is authorized to direct “the
manner” in which the persons included in the census
may be counted, Congress is not permitted to stray
from the constitutional mandate that there must be an
“actual enumeration” of the persons counted.7 To be
sure, the “actual enumeration” requirement does not
mandate that each person counted must be seen and
individually verified by a census taker. But this Court
has narrowly construed Congress’s power over the
“manner” of such “actual enumeration” only to include
those persons who have been verified by reliable
methods, such as certain kinds of hearsay, or by
imputation based upon actual counts of persons in
comparable situations, but these methods may be used
only after the Census Bureau has exhausted other
more certain means by which to conduct the actual
7
Thus, it has been determined that there is no room for
estimating by statistical sampling a State’s population. See Utah
v. Evans, 536 U.S. 452, 464-73 (2002).
13
enumeration authorized by the Constitution. See Id.,
536 U.S. at 476-77.
Third, Congress is authorized to conduct a census
only once every 10 years. While Congress has some
discretion as to the “manner” of the actual
enumeration, it has absolutely no discretion to conduct
any census for apportionment purposes other than the
required decennial one. The 10-year period was
selected as “the only effectual means by which the
relative power of the several States could be justly
represented.” 1 J. Story, Commentaries on the
Constitution, § 644, p. 471 (5th ed. 1891).
Fourth, Congress is authorized to conduct the
decennial census for the purpose of apportioning
Representatives in the the House “among the several
States according to their respective numbers,
counting the whole number of persons in each State,
excluding Indians not taxed.” 14th Amendment, Sec.
2 (emphasis added). While this provision significantly
amended the original text of Article I, Section 2,
Clause 3 to ensure that the “whole number of persons
in each State” was counted, not just the “whole
number of free persons,” the amendment did not
change the original purpose of the mandated census:
“that comparative state political power in the House
would reflect comparative population, not
comparative wealth....” See Utah v. Evans, 536 U.S. at
477 (emphasis added).
To accomplish this comparative representational
purpose, the census count should not include a person
who just happens to be found within a particular
14
State’s boundaries on census day. Thus, a tourist or
other temporary visitor would not be “in” a State
within the meaning of the Constitution’s
apportionment provision. Rather, the function of the
prepositional phrase, “of persons in each State,” would
require a person to be “in” one State in a way that sets
him apart from a person “in” another State. The word
“in” serves the function of distinguishing a person
whose political identity and affiliation would
characterize that person as a Minnesotan, for example,
as contrasted with a person whose political identity
and affiliation would make him a New Yorker. To be
“in” a State, for the purpose of the decennial census,
then, is to determine whether a person is to be
numbered — in the political sense — among the people
of a particular State, to the end that the “House of
Representatives shall be composed of members chosen
every second year by the People of the several
States.” U.S. Constitution, Art. I, Sec. 2, Cl. 1
(emphasis added).
B. Congress Is Not Authorized to Include in
the Decennial Census a Person Who Only
Lives Geographically in a State, but Is Not
a Constituent Part of “the People” of the
Several States.
As the Supreme Court observed in United States v.
Verdugo-Urquidez, 494 U.S. 259 (1990), the reference
to “the people” in Article I, Section 2, Clause 1 is one of
six “select parts of the Constitution,” in which “‘the
people’ seems to have been a term of art....” Id. 494
15
U.S. at 265.8 So employed, the Court continued, “‘the
people’ ... refers to a class of persons who are part of a
national community or who have otherwise developed
sufficient connection with this country to be considered
part of that community.” Id. To illustrate the legal
significance of the term, the Court cited United States
ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904),
and restated the ruling of that case as follows: “[An]
[e]xcludable alien is not entitled to First
Amendment rights, because ‘he does not become one
of the people to whom these things are secured by
our Constitution by an attempt to enter forbidden
by law.”
Verdugo-Urquidez, 494 U.S. at 265
(emphasis added). Indeed, as the Court stated further
in Turner v. Williams:
To appeal to the Constitution is to concede that
this is a land governed by that supreme law, and
as under it the power to exclude has been
determined to exist, those who are excluded
cannot assert the rights in general obtaining in a
land to which they do not belong as citizens or
otherwise. [Id., 194 U.S. at 292 (emphasis
added).]
In direct conflict with this ruling, the Census
Bureau erroneously states that the Constitution
empowers it to count in the decennial census as one of
8
See also discussion of “the people” in the 2nd Amendment in
Gun Owners of America, et al. amicus curiae brief (pp. 9-12) in
District of Columbia v. Heller, 554 U.S.
570 (2008);
http://www.lawandfreedom.com/site/constitutional/
DCvHellerAmicus.pdf.
16
the people of the several States “everyone living in this
country, regardless of immigration or citizenship
status.” 2010 Census FAQs, Q. 2, supra.
The Census Bureau asserts that it is “committed”
not only to “counting every person,” but “counting
every person in the correct place.” 2010 Census
Residence Rules, Item 1 (emphasis added). In
justification of this mission, the Bureau recognizes:
The fundamental reason the decennial census is
conducted is to fulfill the Constitutional
requirement (Article I, Section 2) to apportion the
seats in the U.S. House of Representatives among
the states. Thus, for a fair and equitable
apportionment, it is crucial that people are
counted in the right place during the 2010
Census. [Id. (emphasis added).]
According to the Bureau, the “right place” is a person’s
“usual residence,” that is, “the place where a person
lives and sleeps most of the time.” Id., Item 2.
Remarkably, by this definition, one’s “usual residence”
would trump one’s “voting residence or legal
residence.” Id. Thus, college students “living away
from their parental home,” are “[c]ounted at the oncampus or off-campus residence where they live and
sleep most of the time,” regardless of whether (i) they
may be registered to vote at the address of their
parents; (ii) they claim their legal residence their
family home; or (iii) they pay out-of-state tuition to the
college that they attend. See id., Item 8.
17
Similarly, the Census Bureau counts foreign
students “at the on-campus or off-campus residence
where they live and sleep most of the time,” even
though such students’ legal residence is in a country
other than the United States.
Id., Item 8.
Remarkably, if an American student is living and
studying abroad, he is not counted in the census at
all. Id. Even more remarkably, foreign nationals
living and sleeping most of the time within the
geographic boundaries of a particular State are
counted, even if they unlawfully entered the United
States or, after lawful entry, remained unlawfully on
American soil. Id., Item 14.
In short, the Census Bureau’s rules of residence are
not tailored to count only those persons who are legally
residing in the United States. Instead, the Bureau has
chosen to count persons whose legal residence is
outside the United States and is including them in the
part of the polity of the State in which they are living
and sleeping even if their legal residence is outside of
the United States. Contrary to the Bureau’s claim, its
Residence Rules do not count foreign nationals in their
“right” place and, in failing to do so, the Bureau counts
such nationals as if they are part of the people of the
several States, in violation of the constitutional
principle that limits the people to citizens and others
who rightfully “belong” to the political communities of
the several States. See Turner v. Williams, 194 U.S. at
292.
18
C. The 2010 Census Count, Made without
regard to Immigration or Citizenship
Status, Undercuts State Citizenship as
Defined by the Fourteenth Amendment.
According to the first sentence of the 14th
Amendment, any persons who are “born or naturalized
in the United States and subject to the jurisdiction
thereof” are by definition citizens “of the State wherein
they reside.” Thus, citizenship in the national
government is “paramount and dominant,”9 that is,
“every citizen of the United States is ... without doubt
a citizen” of the State in which he resides. Id., § 113,
p. 326.
In disregard of the fact that state citizenship is
subordinate to, and derivative from, federal
citizenship, the Census Bureau conducts the decennial
census — the purpose of which is to apportion
representatives according to the State’s “respective
numbers” — without regard for “immigration or
citizenship” status. But the respective number of
lawful residents of any State depends almost
exclusively upon the immigration status of those
residents. See T. Cooley, General Principles of
Constitutional Law, supra, pp. 244-45. By ignoring a
person’s “immigration or citizenship” status, the
Bureau’s decennial count undercuts the integrity of
the State’s political identity, counting bona fide
residents who are State citizens, as defined by the
Fourteenth Amendment, to be no different from
9
C. Burdick, The Law of the American Constitution, § 108, p. 318
(New York: 1922).
19
unlawful residents who are not State citizens by that
same definition. In so doing, the Bureau skews the
apportionment formula for determining the number of
representatives allocated to each State, favoring those
States which have a larger portion of unlawful
residents relative to their sister States.
CONCLUSION
For the reasons set forth above, Plaintiffs’ Motion for
Leave to File a Bill of Complaint should be granted.
Respectfully submitted,
GARY G. KREEP
U.S. JUSTICE FOUNDATION
932 D Street
Suite 3
Ramona, CA 92065
(760) 788-6624
Attorney for Amicus
U.S. Justice Foundation
January 13, 2012
HERBERT W. TITUS*
WILLIAM J. OLSON
JOHN S. MILES
JEREMIAH L. MORGAN
WILLIAM J. OLSON, P.C.
370 Maple Avenue West
Suite 4
Vienna, VA 22180-5615
(703) 356-5070
wjo@mindspring.com
Attorneys for Amici Curiae
*Counsel of Record